Blades v Higgs and Another
| Jurisdiction | England & Wales |
| Judgment Date | 07 February 1862 |
| Date | 07 February 1862 |
| Court | Court of Common Pleas |
English Reports Citation: 142 E.R. 1238
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. in Exchequer Chamber, 13 C. B. N. S. 844: and in House of Lord, 20 C. B. N. S. 214; 11 H. L. C. 621; 11 E. R. 1474. See the cases cited in the notes, 11 E. R. 1474, and at 20C. B. N. S. 214.
[501] blades t. higgs and another. Feb. 7th, 18(!2. [S. C. in Exchequer Chamber, 13 C. B. N. H. 844: and in House of Lords, '20 C. B. N. S. 214; II H. L. C. 6:21 ; 11 K. R. 1474. Sec the cases cited in the notes, 11 E. R. 1474, and at 20 C. B. N. H. 214. | Held,-on the authority of Rigg v. The End of Lonsdale, 1 Hurlst. & i\r. 92;i, -that the owner of land has a property in game killed thereon. Tfce first count of the declaration charged that the defendants converted to their own use, or -wrongfully deprived tihe. plaintiffof the -hxs and ponxexsi-on of (a), the plaintiffs goods, that is to say, rabbits and dead rabbits. The second count stated that the defendants assaulted and beat and pushed about the plaintiff, and took from the plaintiff the plaintiff's goods, that is to say, rabbits and dead rabbits: And the plaintiff claimed 201. The defendants pleaded,-first, not guilty, -secondly, to all but the assaulting, beating, and pushing the plaintiff, that the said goods were not, nor were any of them, the plaintiff's, a$ alleged,-thirdly, as to the assaulting, beating, and pushing the plaintiff, that the plaintiff, at the said time when, Sai., had wrongfully in his possession certain dead rabbits of and belonging to the Marquis of Exeter, and the said rabbits were then ill the possession of the plaintiff without the leave and licence and against the will of the said marquis, and the plaintiff was about wrongfully ami unlawfully to (a) It is somewhat singular that pleaders will pertinaciously adhere to the typographical blunder in the 28th form given in Mched. B. to the Common Law Procedure Act, 1852 (although it has been so often pointed out), and still persist in drawing the count for a conversion with an alternative. It was intended to run thus,-" That the defendant converted to his own use [in; "wrongfully deprived the plaintiff of the use and possession of"] the plaintiffs goods, that is to say, &c. iVc. See Day's Common Law Procedure Acts, 180, n. The form given in Bullen & Leake, p. 17;i, unwarrantably substitutes "and" for " or." 12 C. B. (N. S.) 502. BLADES V. HIUGS 1239 take and carry away the said rabbits, and convert the [502] same to his own use; whereupon the defendants, us the servants of the said marquis, and by his command, requested the plaintiff to refrain from carrying aw;iy and converting the said rabbits, and to quit possession thereof to the defendants as such servants, which the plaintiff refused to do; and thereupon the defendants, as the servants of the said marquis, and by his command, gently laid their hands upon the plaintiff, and took the said rabbits from him, using no more force than necessary ; which were the alleged trespasses. The plaintiff joined issue on all the pleas, and also demurred to the third plea, on the ground that, except under peculiar circumstances, the right of recaption cannot lie exercised when it cannot be effected without an assault or other force (ft). The issues of fact came on to be tried before Willes, J., at the last Summer Assizes for the county of Leicester, when the following facts appeared in evidence :-The plaintiff is a fish-monger and licensed dealer in game at Stamford, in the county of Lincoln; and the defendants, William Higgs, and Thomas Percival, are, the former, the steward, and the latter a servant in the employ of the Marquis of Exeter. Between 1 & 8 o'clock in the morning of the Kith of October, 18(50, the plaintiff bought of a man named Yates two bags containing about ninety rabbits, and ordered them to be consigned to him at the Midland station at Stamford. The plaintiff, upon the purchase, paid 41. 15s. for the rabbits. A few minutes before 9 o'clock the same morning, the plaintiff went to the [503] Midland station with a barrow for the purpose of bringing the rabbits away to his shop. The bags arrived, directed to the plaintiff, with one of his own printed labels ; and the plaintiff paid 4s. for the carriage of them to Stamford, and they were delivered to him. As he was proceeding to put the two bags in the harrow, and before he had got them on, the defendant Higgs came up to the plaintiff and said he wanted to see what was in the bags, to which the plaintiff'said he should not allow him ; and, with the assistance of a porter, the plaintiff lifted the bags on the barrow. The defendant Higgs remained there until two policemen came, and then he directed them to see what the bags contained. The plaintiff'said he might. One of the policemen looked into them; and, seeing that they contained dead rabbits, he allowed the plaintiff to take them, and assisted him in putting them back on the barrow. The other defendant, t'ercival, then came up, and said, " I shall take these rabbits ; they are mine : ' and the defendant Higgs said also, " They are the Marquis of Exeter's." The defendants then attempted to get possession of the bags, and the plaintiff resisted for some time, until at length one of the policemen saying to him it was no use his struggling any longer, he discontinued his resistance, and the defendants .took possession of the bags and their contents. Another game-dealer in the town, 'named Pollard, was fetched to the spot to buy the rabbits ; and they were sold to him by the defendants, the plaintiff protesting against the sale of his property. The two bags were directed to the plaintiff', and had been sent from the Ketton station on the Midland railway. The counsel for the defendants proposed to prove on their behalf that the persons who transmitted the rabbits to the plaintiff went upon the Marquis of [504] Exeter's laud and took the rabbits, and killed them and put them into the bags there, and then carried them to the railway station at Ketton ; and he contended that the property in the rabbite was in Lord Kxeter, and that the defendants, acting under his authority, were justified in the course they adopted. The learned judge instructed the jury in substance as follows :-" A man's property in the land does not give him any right of property in animals of a wild nature upon the land after they have become old enough to escape from it. According to Lord Coke's Institutes, a man has no property in a wild animal when it is no longer in his power to restrain it. There are many very curious decisions on that branch of the law,-as, for instance, that the owner of a hawk retains his property in it only so long as he can lure it back. As to young animals, a greater property may be acquired in them; for, they may be taken out of the nests : but, so soou as they are able to escape on to another man's land, the property in them is gone. A man can have no more right to a rabbit than he has to a sparrow on the land of another. It is, 1 own, very (a) The third pica was held to be good, on the ground that the owner of goods (or his servant acting by his command) which are wrongfully in the possession of another, may justify an assault in order to repossess himself of them, no unnecessary violence being used. Ante, vol. x., p. 713. BLADES V. HIGGS 12 C. B. (N. 3.) 505. difficult tu make tiny sensible distinction ; and, for myself, I utivur could wee the distinction between a pheasant and a fowl which I choose to rear and encourage on my land. I never could see the distinction between the pheasant preserved and fed on my land and the burn-door family : but thero is that distinction in the law; and I am bound to administer the law as I find it. The whole theory of the game-laws is founded on there being no permanency in property of this description. One who enters on the land of another without licence is a trespasser. The proofs may be as large as the defendants wish : but, if a person goes on to the land of the Marquis of Kxeter and kills a rabbit or any number of rabbits, and car-[505J-rios them away and sells them to a fishmonger, the Marquis of Exeter's servants have no right to go to the fishmonger's and take them from him. The property in the rabbits would be in the fishmonger, though the taking them was an act of trespass. He might lie subject to the game-laws. It is not like felling a tree, and then carrying it off the land. If these rabbits were the property of Lord Exeter at the time they were seized, the defendants would be justified in seizing them. But, were they Lord Exeter's? The learned counsel for the defendants proposed to shew that certain poachers were in Lord Exeter's grounds, and took the rabbits in question, and sent them from Kettoti station to Stamford, and therefore they were the property of that nobleman, and he had a right by the hands of his servants to take them back. I think not. The learned counsel has read a passage from a book of repute, which he thinks supports his view...
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